Employers' Handbook on ILO Standards-related Activities

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OTHER STANDARDS-RELATED ACTIVITIES members (plus nine substitutes) from the three groups of the GB, acting in an independent capacity, with a chairman added later. The main features of the GB Freedom of Association procedure, which is similar to ILS special supervisory procedures, is the following: l Complaints can be made by governments, national employers’ and workers’ organizations directly concerned, as well as by international employers’ and workers’ organizations having consultative status with the ILO, or as regards matters directly affecting their affiliates. l In calling on both the plaintiff and the government concerned to provide more detailed information, the Director-General, on behalf of the Committee, seeks to clarify the facts of the case. The Committee may also resort to direct contact missions, which consist of sending a high-level representative of the Director-General to the country in question in order to investigate and gather information on the spot. In addition, the Committee invites the parties to discuss the substance of the issue. l Having clarified the facts, the Committee submits a report containing conclusions and recommendations for action to the GB. The Committee may either dismiss a complaint (in part or entirely) or, if it discovers an infringement, recommend steps to rectify the situation. After approval by the Governing Body, the report will be published in the Official Bulletin. l In the case of an infringement, the Committee will ask the government concerned to report back on the action it has taken. If the country has ratified one or more Conventions in the field of Freedom of Association, the Committee will refer the matter for follow-up to the regular supervision. l With the consent of the government concerned, the Committee may also refer the case to the Fact-Finding and Conciliation Commission, whose reports are also published. It needs to be stressed that the purpose of the Freedom of Association procedure is fact-finding and conciliation, rather than passing judgment (therefore, it is not appropriate to speak of “decisions”). Furthermore, the Committee on Freedom of Association is not a supervisory organ relying on interpretation of ILS. This impression nevertheless arises sometimes, as identical interpretations of the meaning of freedom of association have been given by the Committee of Experts and the Committee on Freedom of Association. Despite the fact that the Freedom of Association procedure is in most cases invoked by trade unions, employers’ organizations are equally entitled to make use of it and have done so on an number of occasions. A case in point is the complaint concerning persecution of the employers’ umbrella organization of Nicaragua in 1980 (see box on following page). Employers’ organizations should therefore actively take advantage of this form of ILO assistance in case of discrimination or other illegitimate treatment of employers, of their organizations or representatives. Moreover, it is important that employers’ organizations in a country against which a complaint has been lodged by other ILO constituents, give their respective views. This is all the more important if the behaviour 47
48 EMPLOYERS’ HANDBOOK ON ILO STANDARDS-RELATED ACTIVITIES The complaint by the International Organisation of Employers (IOE) against the Government of Nicaragua (Case No. 1007) in November 1980 l The subject of this complaint was the alleged persecution of the national employers’ organization (Superior Council for Private Enterprise, COSEP) by Nicaraguan government authorities after the victory of the Sandinista National Liberation Front. The complaint concerned, in essence, the following alleged infringements: the murder by the police on 17 November 1980 of COSEP Vice-President Mr. Jorge Salazar Argüello; the arrest of members of COSEP; censorship of collective agreements; and interference by government authorities in the internal structures of employers’ organizations in Nicaragua. l The Committee on Freedom of Association reached interim conclusions in November 1982, February 1984 and May 1984, which confirmed parts of the alleged violations of freedom of association (regarding: control of publications and distribution of information by employers’ organizations, and detention of entrepreneurs). l In February 1995, the Committee considered in its definitive conclusions that “the continuing climate of uncertainty and doubt regarding the circumstances surrounding the death of Mr. Salazar cannot but have a detrimental influence on labour relations and on the trust which must prevail among occupational organizations if freedom of association is to be exercised”. of enterprises is mentioned in the reasons for the complaint. As the governments concerned are not formally required to inform or consult employers’ or workers’ organizations on complaints submitted, the report of the Committee on Freedom of Association, for the time being, is the most important source of information in this regard. The opening paragraphs of the report cite cases the Committee is likely to deal with in the near future. To date (July 2001) the Committee on Freedom of Association has examined more than 2,100 cases concerning 137 countries. More than 600 principles on the contents, scope and limits of freedom of association have been established over time. The employer members of the Committee on Freedom of Association have always approved the majority views and findings expressed by the Committee. Nevertheless, they have, on a number of occasions, stated in the GB their reservations regarding certain views of the Committee: l One area of disagreement has been the Committee’s extensive recognition of the “right to strike”. As far back as 1953, the employers’ spokesperson in the GB, Pierre Waline, pointed out that neither the ILO Constitution nor the ILO Conventions included provisions on the “right to strike”. It was not a part of freedom of association proper and should therefore only be considered by the Committee as far as freedom of association was affected (see: Minutes of the 121st session of the GB, Fifth sitting, 5 March 1953, page 37). In recent years, the employers in the GB felt it necessary to point out that the “right to strike” was not without limits and that existing regulation on strikes in countries, e. g. as regards replacement of strikers, treatment of workers taking part in solidarity strikes, and compulsory
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